Health and Human Services Grants Regulation, 89393-89396 [2016-29752]
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Federal Register / Vol. 81, No. 238 / Monday, December 12, 2016 / Rules and Regulations
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by February 10, 2017. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: November 28, 2016.
Heather McTeer Toney,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
89393
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart Z—Mississippi
2. Section 52.1270(e) is amended by
adding a new entry ‘‘110(a)(1) and (2)
Infrastructure Requirements for the 2012
Annual PM 2.5 NAAQS’’ at the end of the
table to read as follows:
■
§ 52. 1270
*
Identification of plan.
*
*
(e) * * *
*
*
EPA APPROVED MISSISSIPPI NON-REGULATORY PROVISIONS
Name of non-regulatory
SIP provision
*
110(a)(1) and (2) Infrastructure Requirements for the 2012
Annual PM 2.5
NAAQS.
Applicable geographic
or nonattainment area
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Part 75
RIN 0991–AC06
Health and Human Services Grants
Regulation
Division of Grants, Office of
Grants Policy, Oversight, and
Evaluation, Office of the Assistant
Secretary for Financial Resources,
Department of Health and Human
Services.
ACTION: Final rule.
AGENCY:
This final rule makes changes
to the Department of Health and Human
Services’ (HHS) adoption of the Office
of Management and Budget’s (OMB)
(‘‘Uniform Administrative
Requirements’’) published on December
19, 2014 and the technical amendments
published by HHS on January 20, 2016.
HHS codified the OMB language, with
noted modifications as explained in the
preamble to the December
promulgation. The HHS-specific
SUMMARY:
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EPA approval date
Explanation
*
*
12/12/2016, [Insert citation of publication
in Federal Register].
*
*
With the exception of sections: 110(a)(2)(C)
and (J) concerning PSD permitting requirements; 110(a)(2)(D)(i)(I) and (II) (prongs 1
through 4) concerning interstate transport
requirements and the state board majority
requirements respecting significant portion
of income of section 110(a)(2)(E)(ii).
modifications to the Uniform
Administrative Requirements adopted
prior regulatory language that was not in
conflict with OMB’s language, and
provided additional guidance to the
regulated community. Unlike all of the
other modifications to the Uniform
Administrative Requirements, these
additional changes, although based on
existing law or HHS policy, were not
previously codified in regulation. HHS
sought comment on these proposed
changes in a notice of proposed
rulemaking published on July 13, 2016.
This final rule implements these
regulatory changes. It also corrects one
typographical error that was recently
discovered in the most recent
promulgation of the Uniform
Administrative Requirements.
DATES: This rule is effective on January
11, 2017.
FOR FURTHER INFORMATION CONTACT:
Quadira Dantro, MSHS, CRA at (202)
260–6825.
SUPPLEMENTARY INFORMATION:
19, 2014 (79 FR 75871) and the
technical amendments published by
HHS on January 20, 2016 (81 FR 3004).
HHS codified the OMB language, with
noted modifications, in 45 CFR part 75.
Unlike all of the other modifications to
the Uniform Administrative
Requirements, these additional changes,
although based on existing law or HHS
policy, were not previously codified in
regulation. This final rule implements
these regulatory changes.
HHS received 24 relevant comments
on the notice of proposed rulemaking,
half of which were strongly supportive
of the proposed rule. HHS addresses all
of the comments below.
*
*
Mississippi ...................
[FR Doc. 2016–29593 Filed 12–9–16; 8:45 am]
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Background
This final rule makes changes to the
HHS’s adoption of the Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards published on December
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A. Nondiscrimination Provisions
Comment: HHS received twelve
comments on these provisions, all of
which were strongly supportive of the
codification of the nondiscrimination
provisions in HHS awards and the
recognition of same-sex marriages.
Several of these supportive comments
also provided additional areas for
consideration specifically regarding the
definition of discrimination on the basis
of sex. Collectively, the comments
indicated that HHS should define
discrimination on the basis of sex
explicitly to include discrimination on
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89394
Federal Register / Vol. 81, No. 238 / Monday, December 12, 2016 / Rules and Regulations
the basis of sex stereotyping, gender
identity, sexual orientation, pregnancy,
intersex traits, and the presence of
atypical sex characteristics.
Response: HHS appreciates the
comments received, and thanks
commenters for their positive reactions
and helpful suggestions. For the time
being, HHS does not believe it is
necessary to add additional categories to
the list of non-merit based factors. We
note that the determination whether a
factor is merit-based for purposes of
applying the prohibition will depend on
the nature of the particular grant at
issue. HHS has therefore decided not to
amend the nondiscrimination language
proposed in 45 CFR 75.300.
Comment: One comment urged HHS
and its partner federal agencies to
broadly construe age discrimination
protections to support young people as
well as older Americans. The comment
noted that while many age
discrimination laws are enacted with
older adults in mind, it is important to
recognize the stigmatization of young
people and adolescents, particularly in
the healthcare arena.
Response: HHS agrees that young
people and adolescents should have
access to health care and services free
from discrimination. No alterations of
the regulatory text are necessary to
implement these protections. We note
that, while employment laws enforced
by the Equal Employment Opportunity
Commission apply to applicants and
employees forty or older, youth have
additional rights under other federal,
state, or local laws. The Age
Discrimination Act of 1975 (Age Act),
for instance, prohibits discrimination
against young people and older
Americans on the basis of age in
federally funded programs and
activities. In some cases, the Age Act
permits age distinctions that reasonably
take into account age as a factor
necessary to the normal operation or the
achievement of any statutory objective.
State and local discrimination laws may
offer broader protection.
Comment: One commenter indicated
that HHS should specify that the
nondiscrimination provisions included
in § 75.300(c) flow down to subawards.
Response: HHS notes that the
provisions of 45 CFR part 75 already
address the flow down of requirements.
45 CFR 75.101(b)(1) stating that the
terms and conditions of Federal awards
flow down to subawards to
subrecipients unless a particular section
of this part or the terms and conditions
of the Federal award specifically
indicate otherwise.
Comment: Several commenters noted
that the provisions of § 75.300(c) do not
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apply to funding under the Temporary
Assistance for Needy Families Program
(TANF) (title IV–A of the Social
Security Act, 42, U.S.C. 601–619). These
commenters suggested that HHS should
provide additional guidance to TANF
grantees on nondiscrimination.
Response: HHS appreciates the
importance of continued education on
the full scope of nondiscrimination
obligations. The Administration for
Children and Families shares this
commitment.
B. Indirect Cost Rates
Comment: HHS received three
comments regarding the proposed eight
percent cap on indirect cost rates for
foreign organizations. Notably, HHS did
not receive any comments that objected
to the imposition of the same eight
percent cost cap on indirect cost rates
for training grants. The comments
received suggested that the proposed
provision was in conflict with
§ 75.414(f), and that HHS should instead
adopt a ten percent cap on indirect cost
rates for these organizations.
Response: A non-Federal entity that
has never received an indirect cost rate
that is a foreign organization or foreign
public entity, or that would conduct a
training grant, would be limited to the
eight percent modified total direct cost
rate as articulated in § 75.414(c)(3).
Commenters indicated that this
limitation conflicts with § 75.414(f),
which would permit an entity that had
never received an indirect cost rate to
charge a de minimis rate of ten percent.
HHS agrees that this is inconsistent,
and has added clarifying language to
paragraph (f) to ensure that there is no
conflict.
C. Indian Self Determination and
Education Assistance Act
Comment: HHS received numerous
comments, both through the
regulations.gov portal and separately
through the HHS Office of
Intergovernmental and External Affairs,
on the proposed language clarifying that
applicability of certain provisions of the
Uniform Administrative Requirements
to contracts and compacts awarded
pursuant to the Indian Self
Determination and Education
Assistance Act (ISDEAA). The
comments received requested additional
tribal consultation on these issues.
Response: The Department is in the
process of conducting this tribal
consultation, and will proceed as
appropriate after that consultation has
concluded. The regulatory language
from the notice of proposed rulemaking
is not included in this final rule.
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D. Other Issues
HHS received no comments on the
portions of the notice of proposed
rulemaking suggesting changes to the
proposed language regarding same-sex
spouses, marriages, and households,
payment provisions as applied to states,
public access to records, or shared
responsibility payments. Consequently,
HHS is finalizing the regulatory
language without modification. In
addition, HHS is amending one
provision to correct a typographical
error that was inadvertently included in
the most recent promulgation of the
Uniform Administrative Requirements,
so that the HHS promulgation matches
the OMB guidance as intended.
Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. Ch.
3506; 5 CFR 1320 Appendix A.1), HHS
reviewed this final rule and determined
that there are no new collections of
information contained therein.
Regulatory Flexibility Act
The Regulatory Flexibility Act
requires that an agency provide a final
regulatory flexibility analysis or to
certify that the rule will not have a
significant economic impact on a
substantial number of small entities.
This final rule aligns 45 CFR part 75
with various regulatory and statutory
provisions, implements Supreme Court
decisions, and codifies long-standing
policies thus clarifying and enhancing
the provisions in HHS’s interim final
guidance issued December 19, 2014, and
amended on January 20, 2016. In order
to ensure that the public receives the
most value, it is essential that HHS grant
programs function as effectively and
efficiently as possible, and that there is
a high level of accountability to prevent
waste, fraud, and abuse. The additions
provide enhanced direction for the
public and will not have a significant
economic impact beyond HHS’s current
regulations.
Executive Order 12866 Determination
Pursuant to Executive Order 12866,
HHS has designated this final rule to be
economically non-significant. This rule
is not being treated as a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866. Accordingly,
the rule has not been reviewed by the
Office of Management and Budget.
Unfunded Mandates Reform Act of
1995 Determination
Section 202 of the Unfunded
Mandates Reform Act of 1995
(Unfunded Mandates Act) (2 U.S.C.
1532) requires that covered agencies
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prepare a budgetary impact statement
before promulgating a rule that includes
any Federal mandate that may result in
the expenditure by State, local, and
tribal governments, in the aggregate, or
by the private sector, of $100 million or
more in any one year. If a budgetary
impact statement is required, section
205 of the Unfunded Mandates Act also
requires covered agencies to identify
and consider a reasonable number of
regulatory alternatives before
promulgating a rule. HHS has
determined that this final rule will not
result in expenditures by State, local,
and tribal governments, or by the
private sector, of $100 million or more
in any one year. Accordingly, HHS has
not prepared a budgetary impact
statement or specifically addressed the
regulatory alternatives considered.
Executive Order 13132 Determination
HHS has determined that this final
rule does not have any Federalism
implications, as required by Executive
Order 13132.
List of Subjects in 45 CFR Part 75
Accounting, Administrative practice
and procedure, Cost principles, Grant
programs, Grant programs—health,
Grants administration, Hospitals,
Indians, Nonprofit organizations
reporting and recordkeeping
requirements, State and local
governments.
Dated: November 25, 2016.
Sylvia M. Burwell,
Secretary, Department of Health and Human
Services.
For the reasons set forth in the
preamble, part 75 of title 45 of the Code
of Federal Regulations is amended as
follows:
PART 75—UNIFORM ADMINISTRATIVE
REQUIREMENTS, COST PRINCIPLES,
AND AUDIT REQUIREMENTS FOR HHS
AWARDS
1. The authority citation for 45 CFR
part 75 continues to read as follows:
■
Authority: 5 U.S.C. 301.
2. Amend § 75.101 by adding
paragraph (f) to read as follows:
■
§ 75.101
Applicability.
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*
*
*
*
*
(f) Section 75.300(c) does not apply to
the Temporary Assistance for Needy
Families Program (title IV–A of the
Social Security Act, 42 U.S.C. 601–619).
§ 75.110
[Amended]
3. Amend § 75.110(a) by removing
‘‘75.355’’ and adding, in its place,
‘‘75.335’’.
■
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16:18 Dec 09, 2016
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4. Amend § 75.300 by adding
paragraphs (c) and (d) to read as follows:
■
§ 75.300 Statutory and national policy
requirements.
*
*
*
*
*
(c) It is a public policy requirement of
HHS that no person otherwise eligible
will be excluded from participation in,
denied the benefits of, or subjected to
discrimination in the administration of
HHS programs and services based on
non-merit factors such as age, disability,
sex, race, color, national origin, religion,
gender identity, or sexual orientation.
Recipients must comply with this
public policy requirement in the
administration of programs supported
by HHS awards.
(d) In accordance with the Supreme
Court decisions in United States v.
Windsor and in Obergefell v. Hodges, all
recipients must treat as valid the
marriages of same-sex couples. This
does not apply to registered domestic
partnerships, civil unions or similar
formal relationships recognized under
state law as something other than a
marriage.
■ 5. Revise § 75.305(a) to read as
follows:
§ 75.305
Payment.
(a)(1) For states, payments are
governed by Treasury-State CMIA
agreements and default procedures
codified at 31 CFR part 205 and TFM
4A–2000 Overall Disbursing Rules for
All Federal Agencies.
(2) To the extent that Treasury-State
CMIA agreements and default
procedures do not address expenditure
of program income, rebates, refunds,
contract settlements, audit recoveries
and interest earned on such funds, such
funds must be expended before
requesting additional cash payments.
*
*
*
*
*
■ 6. Revise § 75.365 to read as follows:
§ 75.365 Restrictions on public access to
records.
Consistent with § 75.322, HHS
awarding agencies may require
recipients to permit public access to
manuscripts, publications, and data
produced under an award. However, no
HHS awarding agency may place
restrictions on the non-Federal entity
that limit public access to the records of
the non-Federal entity pertinent to a
Federal award identified in §§ 75.361
through 75.364, except for protected
personally identifiable information (PII)
or when the HHS awarding agency can
demonstrate that such records will be
kept confidential and would have been
exempted from disclosure pursuant to
the Freedom of Information Act (5
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89395
U.S.C. 552) or controlled unclassified
information pursuant to Executive
Order 13556 if the records had belonged
to the HHS awarding agency. The
Freedom of Information Act (5 U.S.C.
552) (FOIA) does not apply to those
records that remain under a non-Federal
entity’s control except as required under
§ 75.322. Unless required by Federal,
state, local, or tribal statute, non-Federal
entities are not required to permit
public access to their records identified
in §§ 75.361 through 75.364. The nonFederal entity’s records provided to a
Federal agency generally will be subject
to FOIA and applicable exemptions.
■ 7. In § 75.414, add paragraphs (c)(1)(i)
through (iii) and revise the first sentence
of paragraph (f) to read as follows:
§ 75.414
Indirect (F&A) costs.
*
*
*
*
*
(c) * * *
(1) * * *
(i) Indirect costs on training grants are
limited to a fixed rate of eight percent
of MTDC exclusive of tuition and
related fees, direct expenditures for
equipment, and subawards in excess of
$25,000;
(ii) Indirect costs on grants awarded to
foreign organizations and foreign public
entities and performed fully outside of
the territorial limits of the U.S. may be
paid to support the costs of compliance
with federal requirements at a fixed rate
of eight percent of MTDC exclusive of
tuition and related fees, direct
expenditures for equipment, and
subawards in excess of $25,000; and,
(iii) Negotiated indirect costs may be
paid to the American University, Beirut,
and the World Health Organization.
*
*
*
*
*
(f) In addition to the procedures
outlined in the appendices in paragraph
(e) of this section, any non-Federal
entity that has never received a
negotiated indirect cost rate, except for
those non-Federal entities described in
paragraphs (c)(1)(i) and (ii) and section
(D)(1)(b) of appendix VII to this part,
may elect to charge a de minimis rate of
10% of modified total direct costs
(MTDC) which may be used
indefinitely.* * *
*
*
*
*
*
■ 8. Add § 75.477 to read as follows:
§ 75.477
Shared responsibility payments.
(a) Payments for failure to maintain
minimum essential health coverage.
Any payments or assessments imposed
on an individual or individuals
pursuant to 26 U.S.C. 5000A(b) as a
result of any failure to maintain
minimum essential coverage as required
by 26 U.S.C. 5000A(a) are not allowable
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Federal Register / Vol. 81, No. 238 / Monday, December 12, 2016 / Rules and Regulations
expenses under Federal awards from an
HHS awarding agency.
(b) Payments for failure to offer health
coverage to employees. Any payments
or assessments imposed on an employer
pursuant to 26 U.S.C. 4980H as a result
of the employer’s failure to offer to its
full-time employees (and their
dependents) the opportunity to enroll in
minimum essential coverage under an
eligible employer-sponsored plan are
not allowable expenses under Federal
awards from an HHS awarding agency.
[FR Doc. 2016–29752 Filed 12–9–16; 8:45 am]
BILLING CODE 4150–24–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 151130999–6225–01]
RIN 0648–XF069
Fisheries of the Northeastern United
States; Atlantic Bluefish Fishery;
Quota Transfer
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; approval of
quota transfer.
AGENCY:
NMFS announces its approval
of a transfer of 2016 commercial
bluefish quota from the State of
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SUMMARY:
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Maryland to the State of New York. The
approval of the transfer complies with
the Atlantic Bluefish Fishery
Management Plan quota transfer
provision. This announcement also
informs the public of the revised
commercial quotas for Maryland and
New York.
Effective December 9, 2016
through December 31, 2016.
DATES:
FOR FURTHER INFORMATION CONTACT:
Reid
Lichwell, Fishery Management
Specialist, (978) 281–9112.
SUPPLEMENTARY INFORMATION:
Regulations governing the Atlantic
bluefish fishery are found in 50 CFR
648.160 through 648.167. The
regulations require annual specification
of a commercial quota that is
apportioned among the coastal states
from Maine through Florida. The
process to set the annual commercial
quota and the percent allocated to each
state are described in § 648.162.
The final rule implementing
Amendment 1 to the Bluefish Fishery
Management Plan published in the
Federal Register on July 26, 2000 (65 FR
45844), and provided a mechanism for
transferring bluefish quota from one
state to another. Two or more states,
under mutual agreement and with the
concurrence of the Administrator,
Greater Atlantic Region, NMFS
(Regional Administrator), can request
approval of a transfer of bluefish
commercial quota under
§ 648.162(e)(1)(i) through (iii). The
Regional Administrator must first
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approve any such transfer based on the
criteria in § 648.162(e).
Maryland and New York have
requested the transfer of 50,000 lb
(22,680 kg) of bluefish commercial
quota from Maryland to New York. Both
states have certified that the transfer
meets all pertinent state requirements.
This quota transfer was requested by
New York to ensure that its 2016 quota
would not be exceeded. The Regional
Administrator has approved this quota
transfer based on his determination that
the criteria set forth in § 648.162(e)(1)(i)
through (iii) have been met. The revised
bluefish quotas for calendar year 2016
are: Maryland, 96,631 lb (43,831 kg);
and New York, 927,289 lb (420,611 kg).
These quota adjustments revise the
quotas specified in the final rule
implementing the 2016–2018 Atlantic
Bluefish Specifications published on
August 4, 2016 (81 FR 51370), and
reflect all subsequent commercial
bluefish quota transfers completed to
date. For information of previous
transfers for fishing year 2016 visit:
https://go.usa.gov/xZT8H.
Classification
This action is taken under 50 CFR
part 648 and is exempt from review
under Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 7, 2016.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2016–29720 Filed 12–9–16; 8:45 am]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 81, Number 238 (Monday, December 12, 2016)]
[Rules and Regulations]
[Pages 89393-89396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29752]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 75
RIN 0991-AC06
Health and Human Services Grants Regulation
AGENCY: Division of Grants, Office of Grants Policy, Oversight, and
Evaluation, Office of the Assistant Secretary for Financial Resources,
Department of Health and Human Services.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule makes changes to the Department of Health and
Human Services' (HHS) adoption of the Office of Management and Budget's
(OMB) (``Uniform Administrative Requirements'') published on December
19, 2014 and the technical amendments published by HHS on January 20,
2016. HHS codified the OMB language, with noted modifications as
explained in the preamble to the December promulgation. The HHS-
specific modifications to the Uniform Administrative Requirements
adopted prior regulatory language that was not in conflict with OMB's
language, and provided additional guidance to the regulated community.
Unlike all of the other modifications to the Uniform Administrative
Requirements, these additional changes, although based on existing law
or HHS policy, were not previously codified in regulation. HHS sought
comment on these proposed changes in a notice of proposed rulemaking
published on July 13, 2016. This final rule implements these regulatory
changes. It also corrects one typographical error that was recently
discovered in the most recent promulgation of the Uniform
Administrative Requirements.
DATES: This rule is effective on January 11, 2017.
FOR FURTHER INFORMATION CONTACT: Quadira Dantro, MSHS, CRA at (202)
260-6825.
SUPPLEMENTARY INFORMATION:
Background
This final rule makes changes to the HHS's adoption of the Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards published on December 19, 2014 (79 FR 75871) and the
technical amendments published by HHS on January 20, 2016 (81 FR 3004).
HHS codified the OMB language, with noted modifications, in 45 CFR part
75. Unlike all of the other modifications to the Uniform Administrative
Requirements, these additional changes, although based on existing law
or HHS policy, were not previously codified in regulation. This final
rule implements these regulatory changes.
HHS received 24 relevant comments on the notice of proposed
rulemaking, half of which were strongly supportive of the proposed
rule. HHS addresses all of the comments below.
A. Nondiscrimination Provisions
Comment: HHS received twelve comments on these provisions, all of
which were strongly supportive of the codification of the
nondiscrimination provisions in HHS awards and the recognition of same-
sex marriages. Several of these supportive comments also provided
additional areas for consideration specifically regarding the
definition of discrimination on the basis of sex. Collectively, the
comments indicated that HHS should define discrimination on the basis
of sex explicitly to include discrimination on
[[Page 89394]]
the basis of sex stereotyping, gender identity, sexual orientation,
pregnancy, intersex traits, and the presence of atypical sex
characteristics.
Response: HHS appreciates the comments received, and thanks
commenters for their positive reactions and helpful suggestions. For
the time being, HHS does not believe it is necessary to add additional
categories to the list of non-merit based factors. We note that the
determination whether a factor is merit-based for purposes of applying
the prohibition will depend on the nature of the particular grant at
issue. HHS has therefore decided not to amend the nondiscrimination
language proposed in 45 CFR 75.300.
Comment: One comment urged HHS and its partner federal agencies to
broadly construe age discrimination protections to support young people
as well as older Americans. The comment noted that while many age
discrimination laws are enacted with older adults in mind, it is
important to recognize the stigmatization of young people and
adolescents, particularly in the healthcare arena.
Response: HHS agrees that young people and adolescents should have
access to health care and services free from discrimination. No
alterations of the regulatory text are necessary to implement these
protections. We note that, while employment laws enforced by the Equal
Employment Opportunity Commission apply to applicants and employees
forty or older, youth have additional rights under other federal,
state, or local laws. The Age Discrimination Act of 1975 (Age Act), for
instance, prohibits discrimination against young people and older
Americans on the basis of age in federally funded programs and
activities. In some cases, the Age Act permits age distinctions that
reasonably take into account age as a factor necessary to the normal
operation or the achievement of any statutory objective. State and
local discrimination laws may offer broader protection.
Comment: One commenter indicated that HHS should specify that the
nondiscrimination provisions included in Sec. 75.300(c) flow down to
subawards.
Response: HHS notes that the provisions of 45 CFR part 75 already
address the flow down of requirements. 45 CFR 75.101(b)(1) stating that
the terms and conditions of Federal awards flow down to subawards to
subrecipients unless a particular section of this part or the terms and
conditions of the Federal award specifically indicate otherwise.
Comment: Several commenters noted that the provisions of Sec.
75.300(c) do not apply to funding under the Temporary Assistance for
Needy Families Program (TANF) (title IV-A of the Social Security Act,
42, U.S.C. 601-619). These commenters suggested that HHS should provide
additional guidance to TANF grantees on nondiscrimination.
Response: HHS appreciates the importance of continued education on
the full scope of nondiscrimination obligations. The Administration for
Children and Families shares this commitment.
B. Indirect Cost Rates
Comment: HHS received three comments regarding the proposed eight
percent cap on indirect cost rates for foreign organizations. Notably,
HHS did not receive any comments that objected to the imposition of the
same eight percent cost cap on indirect cost rates for training grants.
The comments received suggested that the proposed provision was in
conflict with Sec. 75.414(f), and that HHS should instead adopt a ten
percent cap on indirect cost rates for these organizations.
Response: A non-Federal entity that has never received an indirect
cost rate that is a foreign organization or foreign public entity, or
that would conduct a training grant, would be limited to the eight
percent modified total direct cost rate as articulated in Sec.
75.414(c)(3). Commenters indicated that this limitation conflicts with
Sec. 75.414(f), which would permit an entity that had never received
an indirect cost rate to charge a de minimis rate of ten percent.
HHS agrees that this is inconsistent, and has added clarifying
language to paragraph (f) to ensure that there is no conflict.
C. Indian Self Determination and Education Assistance Act
Comment: HHS received numerous comments, both through the
regulations.gov portal and separately through the HHS Office of
Intergovernmental and External Affairs, on the proposed language
clarifying that applicability of certain provisions of the Uniform
Administrative Requirements to contracts and compacts awarded pursuant
to the Indian Self Determination and Education Assistance Act (ISDEAA).
The comments received requested additional tribal consultation on these
issues.
Response: The Department is in the process of conducting this
tribal consultation, and will proceed as appropriate after that
consultation has concluded. The regulatory language from the notice of
proposed rulemaking is not included in this final rule.
D. Other Issues
HHS received no comments on the portions of the notice of proposed
rulemaking suggesting changes to the proposed language regarding same-
sex spouses, marriages, and households, payment provisions as applied
to states, public access to records, or shared responsibility payments.
Consequently, HHS is finalizing the regulatory language without
modification. In addition, HHS is amending one provision to correct a
typographical error that was inadvertently included in the most recent
promulgation of the Uniform Administrative Requirements, so that the
HHS promulgation matches the OMB guidance as intended.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Ch. 3506; 5 CFR 1320 Appendix A.1), HHS reviewed this final rule and
determined that there are no new collections of information contained
therein.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires that an agency provide a
final regulatory flexibility analysis or to certify that the rule will
not have a significant economic impact on a substantial number of small
entities. This final rule aligns 45 CFR part 75 with various regulatory
and statutory provisions, implements Supreme Court decisions, and
codifies long-standing policies thus clarifying and enhancing the
provisions in HHS's interim final guidance issued December 19, 2014,
and amended on January 20, 2016. In order to ensure that the public
receives the most value, it is essential that HHS grant programs
function as effectively and efficiently as possible, and that there is
a high level of accountability to prevent waste, fraud, and abuse. The
additions provide enhanced direction for the public and will not have a
significant economic impact beyond HHS's current regulations.
Executive Order 12866 Determination
Pursuant to Executive Order 12866, HHS has designated this final
rule to be economically non-significant. This rule is not being treated
as a ``significant regulatory action'' under section 3(f) of Executive
Order 12866. Accordingly, the rule has not been reviewed by the Office
of Management and Budget.
Unfunded Mandates Reform Act of 1995 Determination
Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded
Mandates Act) (2 U.S.C. 1532) requires that covered agencies
[[Page 89395]]
prepare a budgetary impact statement before promulgating a rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. If a budgetary
impact statement is required, section 205 of the Unfunded Mandates Act
also requires covered agencies to identify and consider a reasonable
number of regulatory alternatives before promulgating a rule. HHS has
determined that this final rule will not result in expenditures by
State, local, and tribal governments, or by the private sector, of $100
million or more in any one year. Accordingly, HHS has not prepared a
budgetary impact statement or specifically addressed the regulatory
alternatives considered.
Executive Order 13132 Determination
HHS has determined that this final rule does not have any
Federalism implications, as required by Executive Order 13132.
List of Subjects in 45 CFR Part 75
Accounting, Administrative practice and procedure, Cost principles,
Grant programs, Grant programs--health, Grants administration,
Hospitals, Indians, Nonprofit organizations reporting and recordkeeping
requirements, State and local governments.
Dated: November 25, 2016.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, part 75 of title 45 of
the Code of Federal Regulations is amended as follows:
PART 75--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND
AUDIT REQUIREMENTS FOR HHS AWARDS
0
1. The authority citation for 45 CFR part 75 continues to read as
follows:
Authority: 5 U.S.C. 301.
0
2. Amend Sec. 75.101 by adding paragraph (f) to read as follows:
Sec. 75.101 Applicability.
* * * * *
(f) Section 75.300(c) does not apply to the Temporary Assistance
for Needy Families Program (title IV-A of the Social Security Act, 42
U.S.C. 601-619).
Sec. 75.110 [Amended]
0
3. Amend Sec. 75.110(a) by removing ``75.355'' and adding, in its
place, ``75.335''.
0
4. Amend Sec. 75.300 by adding paragraphs (c) and (d) to read as
follows:
Sec. 75.300 Statutory and national policy requirements.
* * * * *
(c) It is a public policy requirement of HHS that no person
otherwise eligible will be excluded from participation in, denied the
benefits of, or subjected to discrimination in the administration of
HHS programs and services based on non-merit factors such as age,
disability, sex, race, color, national origin, religion, gender
identity, or sexual orientation. Recipients must comply with this
public policy requirement in the administration of programs supported
by HHS awards.
(d) In accordance with the Supreme Court decisions in United States
v. Windsor and in Obergefell v. Hodges, all recipients must treat as
valid the marriages of same-sex couples. This does not apply to
registered domestic partnerships, civil unions or similar formal
relationships recognized under state law as something other than a
marriage.
0
5. Revise Sec. 75.305(a) to read as follows:
Sec. 75.305 Payment.
(a)(1) For states, payments are governed by Treasury-State CMIA
agreements and default procedures codified at 31 CFR part 205 and TFM
4A-2000 Overall Disbursing Rules for All Federal Agencies.
(2) To the extent that Treasury-State CMIA agreements and default
procedures do not address expenditure of program income, rebates,
refunds, contract settlements, audit recoveries and interest earned on
such funds, such funds must be expended before requesting additional
cash payments.
* * * * *
0
6. Revise Sec. 75.365 to read as follows:
Sec. 75.365 Restrictions on public access to records.
Consistent with Sec. 75.322, HHS awarding agencies may require
recipients to permit public access to manuscripts, publications, and
data produced under an award. However, no HHS awarding agency may place
restrictions on the non-Federal entity that limit public access to the
records of the non-Federal entity pertinent to a Federal award
identified in Sec. Sec. 75.361 through 75.364, except for protected
personally identifiable information (PII) or when the HHS awarding
agency can demonstrate that such records will be kept confidential and
would have been exempted from disclosure pursuant to the Freedom of
Information Act (5 U.S.C. 552) or controlled unclassified information
pursuant to Executive Order 13556 if the records had belonged to the
HHS awarding agency. The Freedom of Information Act (5 U.S.C. 552)
(FOIA) does not apply to those records that remain under a non-Federal
entity's control except as required under Sec. 75.322. Unless required
by Federal, state, local, or tribal statute, non-Federal entities are
not required to permit public access to their records identified in
Sec. Sec. 75.361 through 75.364. The non-Federal entity's records
provided to a Federal agency generally will be subject to FOIA and
applicable exemptions.
0
7. In Sec. 75.414, add paragraphs (c)(1)(i) through (iii) and revise
the first sentence of paragraph (f) to read as follows:
Sec. 75.414 Indirect (F&A) costs.
* * * * *
(c) * * *
(1) * * *
(i) Indirect costs on training grants are limited to a fixed rate
of eight percent of MTDC exclusive of tuition and related fees, direct
expenditures for equipment, and subawards in excess of $25,000;
(ii) Indirect costs on grants awarded to foreign organizations and
foreign public entities and performed fully outside of the territorial
limits of the U.S. may be paid to support the costs of compliance with
federal requirements at a fixed rate of eight percent of MTDC exclusive
of tuition and related fees, direct expenditures for equipment, and
subawards in excess of $25,000; and,
(iii) Negotiated indirect costs may be paid to the American
University, Beirut, and the World Health Organization.
* * * * *
(f) In addition to the procedures outlined in the appendices in
paragraph (e) of this section, any non-Federal entity that has never
received a negotiated indirect cost rate, except for those non-Federal
entities described in paragraphs (c)(1)(i) and (ii) and section
(D)(1)(b) of appendix VII to this part, may elect to charge a de
minimis rate of 10% of modified total direct costs (MTDC) which may be
used indefinitely.* * *
* * * * *
0
8. Add Sec. 75.477 to read as follows:
Sec. 75.477 Shared responsibility payments.
(a) Payments for failure to maintain minimum essential health
coverage. Any payments or assessments imposed on an individual or
individuals pursuant to 26 U.S.C. 5000A(b) as a result of any failure
to maintain minimum essential coverage as required by 26 U.S.C.
5000A(a) are not allowable
[[Page 89396]]
expenses under Federal awards from an HHS awarding agency.
(b) Payments for failure to offer health coverage to employees. Any
payments or assessments imposed on an employer pursuant to 26 U.S.C.
4980H as a result of the employer's failure to offer to its full-time
employees (and their dependents) the opportunity to enroll in minimum
essential coverage under an eligible employer-sponsored plan are not
allowable expenses under Federal awards from an HHS awarding agency.
[FR Doc. 2016-29752 Filed 12-9-16; 8:45 am]
BILLING CODE 4150-24-P
